Industry Spotlight: Stitching it together

By
Canadian Lawyer

01 Feb 2008

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The work done by in-house counsel to support practitioners within the health-care industry can often mimic the emergency room in terms of triaging and determining priorities. Life as an in-house counsel in the health-care industry is fast paced and there’s never a shortage of interesting issues that pop up in any given day.

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Changing models of delivery, an ever-evolving regulatory environment, and a workplace that can at times be as fast paced as the emergency room itself has in-house counsel working in the health-care industry never knowing what to expect when they arrive at the office.

With many similarities to the field of medicine, general counsel for hospitals and health-care facilities are working in a developing area where lawyers say they often get to be on the cutting edge but receive little in the way of a template or precedent.

“It’s constantly evolving, and every day, even some of the nights too, bring new challenges, and that’s something that I think it takes a particular type of lawyer to thrive on that instead of being crushed by it,” says David Weyant, vice president and general counsel for the Calgary Health Region — an immense, publicly funded network of 12 hospitals, 41 care centres, and 29,000 employees serving a population of more than 1.2 million.

Given the size of the Calgary Health Region, the organization requires a large in-house legal department to handle the range of issues at hand, including two clinical support counsel, five lawyers doing contract work, and others working on privacy law, labour and employment, construction, development and planning law, and an in-house litigator.

The variety of work in this area is something agreed upon by all counsel. In the health-care industry as a whole, lawyers are dealing with much more than emergencies and issues related to medicine.

Indeed, counsel tell InHouse that in this field, they are often handling nearly every area of the law imaginable, including contracts, pensions, and intellectual property, which keeps them busy, and has its rewards.

“There’s never a shortage . . . of interesting issues in this role. Never. I wake up in the morning and I just never know what’s going to be hitting my desk that day,” says Alan Belaiche, general counsel at St. Michael’s Hospital in Toronto.

While counsel add a lot of value to the health-care environment, it is always a question of “where do you get involved,” and where is it appropriate and most effective, he says.

“I think what lawyers bring to organizations like health-science centres is really an analytic discipline that is just different than how clinicians think and is generally quite different from how administrators sometimes think as well,” Belaiche says.

Within the hospitals and clinics themselves, health care can be a highly emotionally and politically charged field with immediate expectations. The work done to support its practitioners may mimic the emergency room in terms of triaging to determine priorities, says Weyant. The hospital legal department “runs 24/7 and our emergencies are literally emergencies,” he notes.

One of the issues that demands a rapid response and often arises for in-house counsel in this environment involves consent and providing advice to those on the hospital’s front line. For example, if one of the staff has a consent to treatment issue, it likely can’t wait until the next business day, so calls come in all hours of the day and night for lawyers working on clinical support in Calgary, says Weyant.

Among the variety of diverse issues that have come up, in the area of consent and otherwise, notes Belaiche, include who has the right to consent to an autopsy, who has the right to take possession of a body under the law, and if somebody is shot and is taken to the hospital, who owns the bullet?

Another area that lawyers get involved with are the “difficult discharges” at the hospital, namely with patients who are ready to leave the acute care facility, but will not for various reasons.

These types of issues require very careful management because of the legal risks involved, but also because of the public relations implications, says Bella Martin, general counsel for downtown Toronto’s University Health Network, which includes three major hospitals employing over 11,000 staff and nearly 2,000 volunteers.

In-house counsel also get calls from staff who are distressed about individuals in the hospital who they perceive are acting in a threatening way, says Martin, which involves a judgment call on the part of lawyers as to how serious the situation might be.

One area that Belaiche and Martin are not involved with as part of their daily workload is litigation. As most of the medical practitioners are independent contractors, any issues that may arise are handled by their insurer’s counsel. Indeed, Martin says some of the value the hospital’s in-house counsel provide is litigation avoidance.

Litigation management is a fairly large part of what the legal services department does at the Calgary Health Network, but similar to the health system as a whole, they are trying to shift the focus to prevention.

The region believes in “full, open, and timely disclosure” of any medical errors, says Weyant, and also in providing compensation where errors have caused damages to be suffered, and in-house counsel have to work together with insurer’s counsel to facilitate these objectives and try to deal with it without litigation.

“That’s a big push in where health is going now, shifting from treating existing issues to trying to prevent future ones. Like the health system as a whole, we’re doing the same thing,” he says.

The management and discipline of doctors in the hospital is one area that concerns Martin, who does get involved in discipline issues on the medical staff side.

This can involve many opportunities for procedural snags along the way, she says, as independent contractor status involves a strict regime for discipline or termination, by virtue of Ontario’s Public Hospitals Act.

Risk management and patient safety also remain priorities for counsel. At the moment, Belaiche is co-chairing an enterprise risk-management work group at St. Michael’s — one of the first such broad initiatives at a Canadian hospital looking at the sources of risk and figuring out how to best address them to minimize and mitigate them.

As a by-product of the emphasis on patient safety, Belaiche is involved with practice reviews and determining what the most effective mechanism for dealing with issues that come up in professional practice and has helped to develop a framework along with the hospital’s chief medical officer to help the hospital deal with situations where a discussion may be needed with a health-care professional.

He is also working on performance evaluations for physicians and has been involved with the Council of Academic Hospitals of Ontario, working with a consultant to develop a toolkit to help govern how these types of assessments are done.

Behind the scenes, as the trustee of health information, a hospital or health network also deals with some of the most complex privacy issues in any sector, says Weyant.

One of the key initiatives undertaken by the Calgary Health Network is to have electronic storage of health information.

As it builds an electronic health record, legal services is dealing with the software providers and systems architects to make sure that the right people have access to information.

“It’s a fine balance, of course, between access and privacy, ensuring that all of the health-care providers have the right access so that they can make appropriate diagnoses and can prescribe appropriate medicine, but ensuring also that the patient’s health information is always kept confidential from those who shouldn’t know of it,” he says.

In Toronto, privacy issues are also looming large, according to Belaiche, in a variety of forms. After being involved in implementing the new privacy legislation at the hospital four years ago, he now helps staff respond to privacy concerns and issues, such as contracts or medical records.

Another recent privacy initiative involved Belaiche, Martin, and counsel for Toronto Police sitting down to address issues relating to police coming to the ER and seeking patient information for investigations. Counsel looked at the legislation and found a provision that may allow for discretionary disclosure, if certain conditions are met. The protocol has now been implemented for a six-month pilot period.

“We interact with the police not infrequently, often they’re the people who bring patients to our emergency department or they’re following patients who have come to our emergency department,” says Martin.

Another hurdle facing counsel in this area of law is the significantly changing legislative and regulatory environment.

Keeping on top of these changes is an ongoing challenge, says Belaiche, but one that is alleviated by professional development, as well as an informal caucus of in-house counsel for Toronto-area academic health-science centres.

Through this group, Martin, Belaiche, and other counterparts meet on a bimonthly basis to talk about issues, new developments, and precedents.

“Its amazing how many of the same issues come up at each of our hospitals,” says Martin.

One issue on the horizon is that the landscapes of hospitals themselves are also shifting, as they face the reality, with the aging baby boomer demographic, of a much more informed and demanding client population, says Belaiche, as facilities move in the direction of a patient-centric model.

This change in direction is a good thing, says Belaiche, but it does involve a “significant issue of changed management as organizations and clinicians and administrators respond to the challenges that come from a modified model of health-care delivery,” he says.

“I think its probably fair to say that in some respects, the health-care industry is like a 19th century cottage industry . . . where society is now demanding that it become a 21st century industry,” says Belaiche.

“That kind of a monumental change requires a major paradigm shift in thinking by everyone.”

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